Appeal of W.H. and G.H., on behalf of their child, from action of the Board of Education of the Nanuet Union Free School District regarding residency and homelessness.

Decision No. 18,590

(July 15, 2025)

Mario L. Spagnuolo, Esq., attorney for respondent

ROSA., Commissioner.--Petitioners appeal the decision of the Board of Education of the Nanuet Union Free School District (“respondent”) that their child (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §§ 11431 et seq., “McKinney-Vento”) and New York Education Law § 3209 (1) (a).  The appeal must be dismissed.

In or around March 2024, petitioners and the student were evicted from their in-district residence.  Thereafter, they moved to a location outside of the district (the “out-of-district address”).  Respondent attempted to obtain additional information from petitioners regarding their residency over the next few months.  At some point, petitioners alleged that the student was homeless.

On August 27, 2024, respondent determined that the student was not homeless because the out-of-district address was fixed, regular and adequate.  This appeal ensued.

Petitioners argue that the out-of-district address, an apartment that belongs to a friend, is temporary and inadequate.  Petitioners seek a determination that the students are homeless.

Respondent argues that petitioners have not demonstrated that the student is homeless or that its determination was arbitrary or capricious.

Pursuant to Education Law § 3209 (1) (a), a “homeless child” is:  (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “a supervised publicly or privately operated shelter designed to provide temporary living accommodations” or “a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.”[1]  Both Education Law § 3209 and section 100.2 (x) of the Commissioner's regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a [2]). 

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioners have failed to establish that they and the student lack a fixed, regular, and adequate nighttime residence.  Petitioners generally allege that the apartment is overcrowded, asserting that five people share a two-bedroom apartment and the student shares a bed with a sibling.  However, petitioners do not provide any further evidence of the student’s living arrangements, such as photographs, to support these assertions (Appeal of R.D., 60 Ed Dept Rep, Decision No. 17,866; Appeal of A.S., 58 id., Decision No. 17,559).[2]

Petitioners have also failed to prove that the out-of-district address is temporary.  While petitioners indicate in the petition that they may stay for “about 6 months” and have “been asked to leave,” such statements are insufficient to prove that loss of petitioner’s current housing is imminent (see Appeal of S.R., 62 Ed Dept Rep, Decision No. 18,162; Appeal of J.C., 60 id., Decision No. 17,897; Appeal of V.B., 57 id., Decision No. 17,421).

Thus, on this record, petitioners have failed to meet their burden of proving that the student lacks a fixed, regular and adequate nighttime residence.  Accordingly, I cannot find respondent’s determination that the student is not homeless to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

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